The past two weeks have seen some significant developments in relation to the rule of law and efforts to ensure accountability where individuals have acted contrary to their constitutional roles and responsibilities.

On 24 October 2023, Parliament’s Portfolio Committee on Justice and Correctional Services announced that judges John Hlophe and Nkola Motata were to be given until mid-November to place extenuating circumstances before the committee, which is considering the potential impeachment of the judges.

Then, on 30 October, the Constitutional Court handed down judgment in the case of Ex parte Minister of Home Affairs and Others; In re Lawyers for Human Rights v Minister of Home Affairs.

This judgment was significant, for the court clearly expressed its displeasure with the manner in which litigation had been conducted by ordering that the minister’s legal team was not entitled to charge any fees, and that the minister and director-general be required to pay respectively 10% and 25% of the legal costs of the case from their own pockets.

While the link between the two events might not be immediately apparent, both highlight important aspects of the current state of the rule of law in South Africa.

To begin with, in the Hlophe and Motata matters, it will be recalled that the two judges have reached the final stage of a torturously protracted process to remove them from office. Parliament will ultimately be required to vote on whether to remove the judges from office, and if this is done with a two-thirds majority, the pair will become the first judges to be removed from office in South Africa’s modern history.

Delay has been the name of the game in both these matters, so it should perhaps come as no surprise that the parliamentary part of the process is also moving slowly.

The initial incident involving Judge Motata took place in 2007, and that involving Judge President Hlophe took place in 2008. Both matters have required litigation to undo the JSC’s attempts to dismiss the complaints without making findings of gross misconduct (Freedom Under Law has been a party to litigation in respect of the complaints against both judges).

Gross misconduct

As a result of this litigation, both judges have been found guilty of gross misconduct. While Parliament must still vote on their fate, it is hard to imagine how it could be said that either of these judges now meet the standard of being fit and proper people to hold judicial office. It would be extraordinary for Parliament to now find, in the face of the findings against both judges, that they should not be removed from office.

This is an important moment for Parliament to play its part in upholding the rule of law and ensuring accountability under the Constitution, by removing from office two individuals who have been found to have engaged in conduct that is manifestly inappropriate for someone holding judicial office.

It has already taken litigation to undo the effects of poor decision-making by the Judicial Service Commission (JSC) to ensure that the two judges face accountability for their misconduct. It is now crucial that Parliament acts quickly and decisively to ensure that the delays and errors which have beset both matters are not further compounded. 

In the judgment of the Supreme Court of Appeal which overturned the JSC’s decision not to recommend the impeachment of Judge Motata, Justice Visvanathan Ponnan, in considering whether the court should remit the matter to the JSC or substitute its own decision, wrote that:

“The incident occurred on 6 January 2007. Sixteen years have since passed. It has taken nearly 13 years for the JSC to make a final decision. Undoubtedly, some of the delays were on account of Judge Motata’s high court challenges and points in limine before the Tribunal. Should this court remit the matter to the JSC, there is every likelihood that any fresh decision by it will be reviewed, and the matter will again wind its long, slow journey through the courts. Further delay does not serve the interests of justice.”

That logic applies with equal force to proceedings before Parliament.

Important precedent

These proceedings in Parliament come as part of a broader trend where civil society has been required to step into a void and hold those in public office accountable for unlawful and irregular actions. In this context, the Constitutional Court judgment in the Minister of Home Affairs case sets an important precedent in ensuring that there are consequences for the abuse of court processes.

In this case, an earlier Constitutional Court order, which found provisions of the Immigration Act to be unconstitutional, had been allowed to lapse without the required remedial legislation being passed. The court was scathing about the “dreadful manner” in which the litigation had been conducted by the minister, departmental officials and their legal representatives.

Finding that the legitimacy of the judicial system and the courts would “fall into disrepute if the shockingly poor conduct of litigation as in the present instance is allowed to continue unchecked”, the court ordered that the legal representatives were not entitled to recover their fees, and that the minister and the director-general were personally liable for a percentage of the costs. 

These are damning criticisms indeed, and it is deeply concerning to see such poor conduct by public officials laid bare in the judgment. It is, however, to be welcomed that the court has come out so strongly against this conduct.

This is particularly so in the wider context of a growing trend of lawyers bringing a deluge of (frequently hopeless) cases to the courts, often for ulterior purposes. The phenomenon of “Stalingrad” litigation and so-called SLAPP suits, which are specifically targeted at journalists and activists, are two high-profile examples of the phenomenon.

For far too long, this trend has been allowed to continue unchecked. Even in instances where the courts have made abuse-of-process findings, the tide of unmeritorious litigation has appeared to continue unchecked.

The judgment therefore marks an important attempt by the highest court to reassert judicial authority to hold recalcitrant parties accountable for conducting litigation in such a manner.

It is to be hoped that other litigants and their lawyers will see the judgment as a salutary reminder of their responsibilities to the courts and to the justice system, and that other courts will be able to use this judgment as an authoritative basis to clamp down on abuses of the court process.

It is now up to other role-players in the justice system, such as Parliament in the case of the two judges found to have committed gross misconduct, to play their parts in upholding the rule of law. DM